The recent passage of the President's crime bill, which includes a ban by the
federal government on the purchase or sale of certain "assault weapons,"[1] has forced the usually ignored Second Amendment into the national
spotlight. While the recent Republican takeover of Congress decreases the
possibility of additional federal restrictions on gun ownership in the near
future, existing federal firearms legislation keeps alive the question of
whether the Second Amendment guarantees to the individual a constitutional right
to bear arms.[2] Also, the April 19, 1995 bombing of a federal building in
Oklahoma City allegedly by individuals loosely connected with so-called
"militia" groups, has served as a catalyst to bring the Second Amendment into
the spotlight.[3] Adding to the attention, the academic realm has challenged the
viability of the "state's right" interpretation of the Second Amendment,[4] an interpretation which has been embraced by at least six federal
circuit courts.

Part II of this Comment surveys the modern Second Amendment landscape,
emphasizing the all-important debate over whether the Second Amendment affords
rights to individuals or to states. Part III of the Comment examines the
misinterpretation of the Second Amendment by the lower federal judiciary. It
includes discussion of several key state's right decisions and offers the
foundation for the premise of the Comment.

This Comment embraces the individual rights interpretation of the Second
Amendment. According to that interpretation, the Second Amendment grants[5] to the citizen the right to keep and bear arms, a right now
floundering between the Scylla of state police and militia powers and the
Charybdis of federal regulation. The Comment argues, however, that federal
firearms regulation is unconstitutional whether Second Amendment rights are
interpreted as belonging to the individual or to the states.

The heart of this Comment is, thus, found in part IV, which proposes and
explores constitutional challenges to federal firearms regulation. These
arguments are unique because they do not depend upon acceptance by courts of the
individual rights interpretation. Indeed, they concede the continued acceptance
of the state's right interpretation of the Second Amendment by some lower
federal courts. Such challenges can be viewed as a means of questioning federal
firearms regulation—and as creating a more expansive interpretation of the
Second Amendment—by using contemporary case law.

II. DUELING
INTERPRETATIONSOFTHE SECOND AMENDMENT: A
STATE'S RIGHTVS. AN INDIVIDUAL
RIGHT

"That to secure these rights, Governments are instituted among
Men, deriving their just powers from the consent of the governed,—That
whenever any Form of Government becomes destructive of these ends, it is the
Right of the People to alter or abolish it . . . ."[6]

With these words, Thomas Jefferson condensed into a paragraph the Lockean
views of government and the individual which to this day remain particularly
American. The right to keep and bear arms is in many ways the ultimate right,
for it guarantees the citizenry a mechanism with which to overthrow oppressive
government.[7] In the Declaration of Independence, Jefferson observed that "when
a long train of abuses and usurpations, pursuing invariably the same Object
evinces a design to reduce [the people] under absolute Despotism, it is [the
people's right], it is their duty, to throw off such Government, and to provide
new Guards for their future security."[8] When the United States emerged from the overthrow of tyrannical
English domination, the founding fathers understood the danger of unfettered
government and were justifiably suspicious of a "Military independent of and
superior to the Civil Power."[9]

The right to keep and bear arms, put in a more universal and timeless way, is
the means by which the people retain ultimate ownership and control of their
government.[10] Philosophical underpinnings aside, the debate in courtrooms and
legal journals today centers on the application and meaning of the Second
Amendment.

A.The State's Right
Interpretation

The foundation of the state's right—or collective right[11]—interpretation of the Second Amendment is found in the Militia
Clause of the Constitution,[12] which gives Congress the power to "provide for the calling forth
of the Militia to execute the Laws of the Union, suppress Insurrections and
repel Invasions," and to "provide for the organizing, arming, and disciplining"
of the Militia.[13] State's right proponents maintain that the Second Amendment was
a response to the fear of states that Congress might disarm their militias
through the powers granted to it by this clause, leaving the states with no
means to defend themselves against federal tyranny.[14]

The courts and scholars have produced two versions of the state's right view,
referred to in this Comment as the "weak-form" and the "strong-form." Under the
weak-form, states and members of state militias have standing to assert Second
Amendment rights against federal infringement.[15] Proponents of the strong-form argue that, while the Second
Amendment did at one time protect states from federal regulation of their
militias, in the modern world, the maintenance of the National Guard satisfies
the purposes of the Amendment.[16] Few courts have adopted the strong-form, possibly because it
requires an unapologetic policy-making most courts would rather avoid. Also,
rather daunting textual, historical, and analytical obstacles face the
strong-form,[17] which make it less palatable to courts bound by contrary Supreme
Court precedent.[18] Implicit in the strong-form view is the notion that, since
government has behaved itself so far, while possessing awesome military
capability, there is no longer a need to maintain an armed citizenry as a
deterrent to federal overreaching.[19] To make their arguments, strong-form proponents must prove that
the United States has outgrown the need for strong civilian deterrence. In light
of the history of government, politics, and revolution throughout the world,
this is a heavy burden indeed.[20]

B.The Individual Right
Interpretation

The individual right interpretation of the Second Amendment, which asserts
that citizens have a personal right to keep and bear arms, finds support among
the majority of Americans.[21] The individual right view incorporates the state's right
argument that the Second Amendment was motivated in part by the states' fear of
a strong federal standing army.[22] However, proponents of the individual right interpretation cite
other historical factors, such as the deterrence of governmental oppression and
the right to personal defense, to explain why the Second Amendment affords
rights to individuals.[23] In addition, individual right proponents argue that even if
protection of state militias were the sole purpose of the Second Amendment, the
right to keep and bear arms would remain an individual right, since this goal is
best achieved by keeping firearms in the hands of the citizenry itself.[24]

The individual right interpretation is strongly supported by the text of the
Second Amendment itself; that is, the phrase "the right of the people to keep
and bear Arms" means exactly what it says. The preamble "A well regulated
Militia, being necessary to the security of a free State" is merely an
acknowledgement that an armed citizenry is necessary to prevent tyranny by
government.[25] Under the individual right view, the term "the people" has the
same meaning in the Second Amendment as it does throughout the Bill of Rights.[26]

If the Second Amendment protects an individual right, the question arises
whether the Amendment is incorporated against the states. Opponents of such a
full-incorporationist view point to United States v. Cruikshank[27] and Presser v. Illinois,[28] two Supreme Court cases which expressly held that the Second
Amendment was a restriction on the powers of only the federal government,
leaving states free to regulate firearms as they wished. The Northern District
of Illinois recently cited these cases in Quilici v. Village of Morton
Grove,[29] in which the court denied a Second Amendment challenge brought
by handgun owners against a local ordinance which prohibited possession and use
of handguns.[30] The Quilici court reasoned that, since the Supreme Court
has never reconsidered the holding in Presser, that case "stands as the
most recent pronouncement on the issue of whether the Second Amendment was
incorporated into the Fourteenth Amendment so as to limit the power of the
states."[31]

However, the incorporation issue is far from settled. Professor Levinson
points out that the first incorporation decision by the Court came eleven years
after Presser,[32] and he poses this intriguing question: "Why . . . should
Cruikshank and Presser be regarded as binding precedent any more
than the other 'pre-incorporation' decisions refusing to apply given aspects of
the Bill of Rights against the states?"[33]

Proponents of the discrete collectivist theory maintain that "the people" in
the Second Amendment refers to the collective body of citizens,[35] and not to individuals or to states. Dowlut and Knoop
observe that "[t]he collectivists essentially claim that there is a nebulous
entity that exists somewhere between the individual and the state which is so
important that the Framers protected it with a constitutional right."[36] The result is that no one has standing to assert Second
Amendment rights, since "the people" has been interpreted into a philosophical
mist.[37]

The nebulous entity theory was first unveiled by the Kansas Supreme Court in
City of Salina v. Blaksley,[38] but has not gained acceptance by federal courts.[39] "The collectivists' argument should not be followed by courts
because it has no historical support, no case law support prior to the Kansas
decision, and is illogical since the very concept of a right is individual."[40] However, some commentators argue that this theory, and not the
collective right theory, is the foundation of modern federal case law.[41]

D.Academia:Asleep in the Ivory Tower

While most Americans understand the right to keep and bear arms as an
individual right, the state's right view has been predominant in academia.[42] In his text on the Constitution, Professor Peltason sternly
concluded that the Second Amendment "provides no constitutional right for a
private citizen to retain weapons."[43] One is hard-pressed to find any mention of the Second Amendment
in constitutional law textbooks[44] or constitutional treatises.[45] Even the rights-oriented American Civil Liberties Union denies
that the Second Amendment protects individuals, and, in fact, supports
governmental restriction and control of gun ownership.[46]

The Second Amendment has thus been left to stand in the corner; indeed, one
commentator analogizes the Second Amendment to an "embarrassing relative, whose
mention brings a quick change of subject to other, more respectable family
members."[47] Because of this shunning, questionable Second Amendment
decisions—such as those discussed infra in part III—go unchallenged.

The conspicuous distance that many academics place between themselves and the
Second Amendment is not so surprising because those in a position to mold and
move the law have a natural tendency to do so in a manner that expands their
power and influence.[48] Professor Johnson speculated that "[t]he social, political, and
economic elite may have realistic expectations of substantially impacting public
policy, and they are the least likely to fear collective power turned against
them. They might fairly consider government to be trustworthy, benevolent, and
directed in pursuit of their interests."[49] Judge Bork noted that "one would expect to see the law become
less restrictive where it impinges on the intellectual class's interests.
Freedom of speech is, of course, the sine qua non of the intellectual class."[50] Indeed, the intelligentsia fiercely defend the First and
Fourteenth Amendments, as well as the Commerce Clause, but give an icy reception
to rights which affirm the people's ownership of government. To many in
academia, an armed citizenry at worst offends what they believe is in the
interest of good social policy,[51] and at best is distasteful.[52]

III. THE
FEDERAL ASSAULTONTHE CITIZEN'S RIGHT TO KEEPAND BEAR ARMS

In light of the compelling historical and textual indicia supporting the
individual right interpretation, the performance of the federal judiciary in
construing the Second Amendment is disappointing. Even Justice Douglas, whose
"opinions were marked by a fierce commitment to individual rights and distrust
of government,"[53] seemed unconcerned with the erosion of Second Amendment
rights.[54] Whatever the source of complacency among some federal courts,
the case law is hardly watertight.

A. United States v.
Miller

With United States v. Miller in 1939, the Supreme Court released its
only modern Second Amendment decision.[55] While seemingly embracing the state's right interpretation, the
Court devoted significant discussion to the purpose of the Second Amendment, and
to the importance of independent state militias.[56]

Miller was charged with transporting an unregistered sawed-off shotgun across
state lines in violation of the National Firearms Act.[57] Through its registration requirements, the Act imposed a
prohibitive tax upon certain weapons transported in interstate commerce. The
trial court voided the indictment, holding that the Second Amendment prohibited
such federal regulation.[58] The Supreme Court reversed and reinstated the indictment,
stressing that the defendants had attacked the indictment only, and had
introduced no evidence to support the claim that sawed-off shotguns were
protected under the Second Amendment.[59]

In upholding the constitutionality of the National Firearms Act as applied to
Miller, the Court wrote that the Second Amendment was included in the Bill of
Rights to "assure the continuation and render possible the effectiveness"[60] of the Militia described in Article I, Section 8, Clause 16.[61] The Court, through Justice McReynolds, outlined the standard
courts must apply to assess the constitutionality of congressional regulation of
firearms:

In the absence of any evidence tending to show that possession or
use of a 'shotgun having a barrel of less than eighteen inches in length' at
this time has some reasonable relationship to the preservation and efficiency
of a well regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of the ordinary military
equipment or that its use could contribute to the common defense.[62]

The standard established by Miller can be clearly understood by
reversing the Court's factual finding and examining the result. If Miller had
demonstrated to the Court that sawed-off shotguns were rationally related to the
efficiency and preservation of the militia, then federal regulation of such
weapons would be unconstitutional. This simple Gedanken experiment exposes the
very heart of the Miller decision: weapons which are not used for
ordinary militia purposes, or do not "contribute to the common defense," are not
protected by the Second Amendment. A useful analogy can be made to the First
Amendment; courts will not strike down regulation of unprotected classes of
expression, such as obscenity or libel.

Scholars have debated the meaning of the Court's holding in Miller.
Kates focuses on the Court's extensive discussion of the history of the militia
in America[63] and categorizes Miller as a case which ultimately upholds
the individual right view.[64] The Court's definition of who comprises the militia reinforces
his reading:

The Militia which the States were expected to maintain and train
is set in contrast with Troops which they were forbidden to keep without the
consent of Congress. The sentiment of the time strongly disfavored standing
armies; the common view was that adequate defense of country and laws could be
secured through the Militia—civilians primarily, soldiers on occasion . . . .
And further, that ordinarily when called for service these men were expected
to appear bearing arms supplied by themselves and of the kind in common
use at the time.[65]

The Court's definition of the militia, coupled with the fact that the Court's
"reasonable relationship" test was directed to the weapon alone, casts doubt on
claims that Miller was a state's right decision. Miller's standing to
assert Second Amendment rights was never questioned by the Court. The premise of
the state's right view is, after all, that the Second Amendment is not
applicable to individuals. Going back to the Gedanken experiment, if Miller had
produced evidence that sawed-off shotguns were reasonably related to a
well-regulated militia, Second Amendment protection from federal regulation
would apply.

At the same time, it cannot be said that the Miller Court fully
embraced the individual right interpretation, since the Court did not read any
other interest into the right to keep and bear arms beyond the militia interest.
While this holding has implications regarding the types of weapons that may or
may not be regulated by the federal government, it by no means shifts Second
Amendment protections from the citizen to the state. The meaning of
Miller will continue to be debated until the Supreme Court revisits the
Second Amendment. The now fifty-six-year-old opinion unfortunately left much to
the imagination, and some lower federal courts have vivid imaginations indeed.

B.A Tragicomedy of
Errors:The Misinterpretation of Miller and the Priestcraft of the
Collective Right Courts

1. The First Circuit

Some federal courts have viewed the holding of Miller through state's
right lenses, and through time, lens upon lens, have blurred the meaning of the
Second Amendment beyond recognition. The First Circuit began this process in
1942 with Cases v. United States,[66] the first state's right case among the federal circuit courts.

Cases was convicted under the Federal Firearms Act.[67] Unlike Miller, who was indicted for transporting a particular
type of weapon through interstate commerce, Cases was convicted under the Act's
prohibition against the transportation and reception of firearms and ammunition
by convicted felons.[68] The Cases court acknowledged that under Miller the
federal government could not "prohibit the possession or use of any weapon which
has any reasonable relationship to the preservation or efficiency of a well
regulated militia."[69] However, the Cases court proceeded to ignore the
Miller holding, stating that it probably was not intended to provide a
general rule for all cases[70] and was "outdated," despite preceding Cases by only three
and one half-years.[71]

The Cases court's refusal to apply directly the Miller standard
reflected its concern that the Miller test would absolutely bar federal
regulation of anything other than antiques, since almost any other weapon would
bear a reasonable relationship to the efficiency and preservation of a
well-regulated militia.[72] In rendering its decision, the Cases court was also
motivated by a fear that, if the Miller holding were accepted as the
general rule, Congress would be unable to prevent militia members from
possessing or using "distinctly military arms," including machine guns, trench
mortars, anti-tank guns, or anti-aircraft guns, "even though under the
circumstances surrounding such possession or use it would be inconceivable that
a private person could have any legitimate reason for having such a weapon."[73]

The Cases court relieved the inevitable tension between Miller
and its own holding through a subtle but crucial alteration of the Miller
reasonable relationship inquiry. While the Miller court scrutinized the
firearm's militia utility, the Cases court further inquired into whether
the defendant's use of the weapon bore a reasonable relationship to militia
purposes. The First Circuit noted that no evidence linked Cases to a military
organization or demonstrated that his use of the weapon was tied to a military
career.[74] The court thus narrowed those able to raise Second Amendment
defenses to those in "military organizations" whose use or possession of a
firearm furthers a state's militia purposes.[75] By stretching and massaging language from Miller into a
shape for which it was never intended, Cases provided future courts with
the leeway to find Second Amendment protections inapplicable to individuals.[76] The Cases court did not, however, go so far as to adopt a
strict reading of the state's right interpretation of the Second Amendment,
which would deny standing to everything and everyone except the states.

The Cases court cemented its restriction of the individual right
approach by citing the nineteenth-century Supreme Court decisions of
Cruikshank and Presser,[77] both decided before the Fourteenth Amendment incorporation
era,[78] for the proposition that the Second Amendment does not confer
rights upon the individual:

The right to keep and bear arms is not a right conferred upon the
people by the federal constitution. Whatever rights . . . the people
may have depend upon local legislation; the only function of the Second
Amendment being to prevent the federal government and the federal government
only from infringing that right.[79]

2. The Sixth Circuit

In Stevens v. United States,[80] the Sixth Circuit cited Miller as a state's right case,
and held that "[s]ince the Second Amendment right 'to keep and bear Arms'
applies only to the right of the State to maintain a militia and not to the
individual's right to bear arms, there can be no serious claim to any express
constitutional right to possess a firearm."[81] The Stevens decision marked the beginning of widespread
acceptance of the state's right interpretation among lower federal courts.[82]

The Sixth Circuit followed the Stevens decision with United States
v. Warin,[83] a 1976 case which is a textbook weak-form state's right
decision. The Warin court, citing its prior decision in Stevens,
held that the Second Amendment applies only to the right of a state to maintain
a militia, referring to it as a "collective right of the militia."[84]

Warin was convicted of willfully and knowingly possessing a 9mm prototype
submachine gun which was not registered to him, in violation of federal law.[85] Warin, claiming to be a member of Ohio's sedentary militia,[86] challenged his conviction by arguing that the federal regulation
infringed on his right to keep and bear arms.[87] An engineer and developer of firearms, Warin had built the
weapon himself with the intention of offering the federal government an improved
military firearm.[88] The Sixth Circuit did not dispute findings of fact from the
trial court that submachine guns bear some reasonable relationship to the
preservation or efficiency of the military forces,[89] that Warin was not a member of Ohio's "active militia,"[90] and that the weapon was not registered to him as required by
federal law.[91]

The Warin court specifically analyzed, and deferred to, Ohio's
constitution and regulatory scheme.[92] Under Ohio law, members of the organized militia are exempt from
a state law making it unlawful to "acquire, have, carry, or use any dangerous
ordnance" such as the automatic weapon owned by Warin.[93] Since Warin was only subject to membership in the militia
under the Ohio Constitution, and was thus only a "sedentary militia" member, the
statutory exemption was inapplicable.[94] The analysis by the Sixth Circuit in Warin follows the
Cases court's holding that state constitutional and statutory provisions
must be incorporated into the Second Amendment equation to determine the extent
to which the federal government may regulate firearms.[95]

The Warin court, in what could be characterized as dicta,[96] then assessed the constitutionality of the National Firearms
Act's regulation of automatic weapons. Rather than employing the Supreme Court's
Miller test, the court simply echoed the Cases rebuke of
Miller as Second Amendment precedent.[97] Like the Cases court, the Sixth Circuit dismissed
Miller as law from another less technologically advanced era.[98] The court, however, did not provide an "updated" analytical
model by which to assess the relationship between a weapon and the purpose of
militias; it simply held that "there is absolutely no evidence that a submachine
gun in the hands of an individual 'sedentary militia' member would have
any, much less a 'reasonable relationship' to the preservation or efficiency of
a well regulated militia."[99]

This case-by-case approach, which emerged from Cases, reveals one of
the weaknesses of the state's right interpretation. In explaining away the
Miller reasonable relationship standard, courts have not offered anything
in its place.[100] The result is that, while the Miller standard is still
cited, state's right courts utilize no legal standard whatsoever in determining
whether a firearm is reasonably related to the (now) mysterious "militia
purposes."[101]

3. The Seventh Circuit

The Seventh Circuit affirmed[102] the district court's holding in Quilici[103] that the Second Amendment does not apply to states, but then
went further to conclude that the right to keep and bear handguns is not
protected under the Second Amendment.[104] Although the Seventh Circuit admitted its conclusion was mere
dicta,[105] it speculated "for the sake of completeness"[106] that the Miller decision limits the Second Amendment to
the militia purpose, and that handguns are not military weapons and are thus
unprotected.[107]

The Quilici cases are not true collective right decisions. Once the
Quilici courts held that the Second Amendment had not been incorporated
against the states, the issues in that litigation ceased to have Second
Amendment relevance.[108] The issues in the Quilici cases were whether Morton
Grove's handgun ban violated the Illinois constitutional right to keep and bear
arms, and whether the ban violated privacy rights.[109]

4. The Eighth Circuit

The Eighth Circuit appears to have accepted the strong-form version of the
state's right theory.[110] In United States v. Hale,[111] a 1992 decision, Hale challenged his conviction of thirteen
counts of possession of a machine gun[112] and three counts of possession of an unregistered firearm.[113] Hale argued that the statutes under which he was convicted
exceeded Congress's power to regulate interstate commerce and that the
indictment violated his Second Amendment rights.[114]

As to the second challenge, Hale argued that under Miller, federal
regulation of weapons susceptible to military use is barred by the Second
Amendment.[115] The court rejected this interpretation of Miller, citing
to the First Circuit's "illuminating" Cases decision as the proper
approach.[116] Though hinting that a machine gun might have militia utility,
the court focused on the status of the possessor, noting that since
Miller, "no federal court has found any individual's possession of a
military weapon to be 'reasonably related to a well regulated militia.' "[117]

Hale cited language from Chief Justice Rehnquist's majority opinion in
United States v. Verdugo-Urquidez,[118] which classified the Second Amendment right as an individual
right,[119] to support an argument that the Second Amendment protects
individuals and not states "or collective entities like militias."[120] The court found Hale's argument "inapplicable to this case" and
"irrelevant" given its finding that Hale's possession of the machine gun was
unrelated to the preservation or efficiency of a militia.[121] However, the court did acknowledge that in light of
Verdugo-Urquidez, the Second Amendment might possibly protect
individual rights.[122]

The Hale court put the cart before the horse. The Cases-type
test which the court employed to find Hale's possession of the firearm outside
Second Amendment protection is itself based on the collective right
interpretation. In explaining its use of the Cases test, the court stated
that it could not conclude that the Second Amendment right is an individual
right.[123] This holding undermines the court's dismissal of Hale's
individual right/Verdugo-Urquidez argument as irrelevant and
inapplicable. After all, if the Second Amendment protects an individual right,
then courts should scrutinize only the weapon for its militia utility, and
should return to the Supreme Court's Miller test. However, since courts
have never developed tests to determine which weapons have militia utility, it
is uncertain whether a fully automatic weapon would fall under the aegis of the
Second Amendment.

Another notable aspect of Hale is the Eighth Circuit's apparent
adoption of the strong-form state's right interpretation. The court offered the
following historical analysis to support its position:

These militias were comprised of ordinary citizens who typically
were required to provide their own equipment and arms. The Second Amendment
prevented federal laws that would infringe upon the possession of arms by
individuals and thus render the state militias impotent. Over the next 200
years, state militias first faded out of existence, and then later reemerged
as more organized, semi-professional military units.[124]

The court added that states began providing arms and equipment to these
military units, which were eventually organized into the present national guard
structure.[125] The court then cited to Perpich v. U.S. Departmetnt of
Defense,[126] a 1990 Supreme Court decision affirming an Eighth Circuit
appellate decision.[127] In Perpich, the Governor of Minnesota sought to enjoin
the federal government from using Minnesota's national guard to conduct military
operations in Central America.[128] The Court examined the relationship between the militia and the
National Guard, and concluded that the federal government "provides virtually
all of the funding, the materiel, and the leadership for the State Guard
units."[129] The Hale court recognized that Perpich was not a
Second Amendment case, but stated in a rather cryptic fashion that "its
discussion of the militia gives further dimension to our analysis."[130] Faced with the extensive discussion in Miller casting
the right to bear arms as an individual right,[131] the Eighth Circuit declared that "[i]n Miller, the Court
simply recognized this historical residue."[132] This characterization is disingenuous.[133]

After the Perpich discussion, and its own historical recount on the
supposed transformation of militias into the National Guard, the Eighth Circuit
held in distinctly strong-form language that " '[t]echnical' membership in a
state militia (e.g., membership in an 'unorganized' state militia) or membership
in a non-governmental military organization is not sufficient to satisfy the
'reasonable relationship' test."[134] The court then cited to Warin, and offered the following
misreading of that decision: "Membership in a hypothetical or `sedentary'
militia is likewise insufficient."[135]

The Eighth Circuit's strong-form approach in Hale is a study in
contradiction. One of the few things that the individual right and state's right
camps agree on is that the Second Amendment protects states from federal
interference with militias.[136] To define the militia as the National Guard, a professional
military organization which exists at the mercy of and under the direction of
the federal government, is to render the Second Amendment little more than
wasted ink. The Eighth Circuit was careful not to paint itself completely into a
corner, but, short of crossing one's eyes, it is hard to read the court's
discussion as anything but an acceptance of the strong-form state's right
interpretation.

Judge Beam concurred in the result, but disagreed with the court's collective
right approach in light of the Miller decision.[137]

5. Other Collective Right Federal Courts

Other federal circuits have utilized some form of the state's right view in
deciding Second Amendment cases, including the Third Circuit,[138] the Fourth Circuit,[139] and the Tenth Circuit.[140]

The Fourth Circuit's recent decision in Love v. Pepersack[141] reaffirms that circuit's acceptance of the collective right
interpretation in an interesting context. Love brought a section 1983 civil
rights action against various Maryland state troopers who improperly denied her
application to purchase a handgun.[142] Under Maryland law, if a criminal records check of an applicant
is not completed within seven days, a gun dealer may legally sell the applicant
a firearm.[143] The computer printout of Love's record indicated that she had
been arrested on four occasions, but did not indicate the disposition of charges
filed against her.[144] With the seven-day deadline approaching, the reviewing state
police officers denied Love's application based solely on her arrest record.[145] Love, in fact, had been convicted only of a misdemeanor, for
which she paid a fine.[146] Love sued members of the state police under section 1983 for
violation of substantive due process, her "right to contract," and her Second
Amendment rights.[147]

As to her Second Amendment claim, Love argued that the state of Maryland
infringed upon her individual right to keep and bear arms.[148] The court disagreed, citing Presser and
Cruikshank to hold that the Second Amendment does not apply to the
states.[149] The opinion should have ended there, consistent with the
collective right argument that the Second Amendment applies only to regulation
by Congress. The court, however, then slid into a collective right analysis of
Love's challenge to federal regulation, and concluded that Love "has . . . not
identified how her possession of a handgun will preserve or insure the
effectiveness of the militia."[150] This second holding by the court is curious, given the fact
that Love challenged no federal law. The court's preternatural jaunt into
analysis of federal regulation can thus be characterized as grand but excessive
dicta, or perhaps as yet another example of the haphazard application of the
undeveloped state's right interpretation.[151] The Love court did acknowledge (if only impliedly) that
the collective right approach is a creation of lower federal courts, and is not
based on Miller.[152]

Appellate collective right decisions have trickled down to some federal
district courts. In United States v. Kozerski,[153] the federal district court of New Hampshire held that a
convicted felon who analogized himself to a "rural police officer" had no right
to possess a firearm.[154] The court cited Miller for the proposition that the
Second Amendment is not a conferral of a right but only a limitation of
Congress, but then went beyond Miller by holding that "the Second
Amendment is a collective right to bear arms . . . and has application only to
the right of the state to maintain a militia and not to the individual's right
to bear arms."[155]

Other district courts have held that states may regulate or prohibit the
forming of private armies by citizens[156] and that a state may ban the use, possession, manufacture, and
transfer of assault weapons without infringing on Second Amendment rights.[157] These cases were decided on incorporation grounds, however, and
cannot be considered true state's right opinions.[158]

C.A Summary of the
Emerging State's Right Analysis

Application of the collective right interpretation in the federal courts is
erratic. However, the cases do support the following three-part analysis: first,
whether the person or thing has standing to assert Second Amendment rights;
second, what rights the state in issue has conferred upon the person or thing
asserting Second Amendment protection; and third, whether the Second Amendment
protects possession of the particular firearm.

The analysis should not be viewed as a series of steps, but rather as a set
of components which are blended together as part of the Cases test of the
constitutional limitation of the Second Amendment.

The first component is whether or not the person or thing can assert Second
Amendment rights. Here, the courts fill in the blank in the phrase "the right of
[ ] to keep and bear arms shall not be infringed." Under the individual right
interpretation, the blank will be filled with "the people" as it is used
throughout the rest of the Bill of Rights. Under the state's right
interpretation, the blank is of course filled with the term "the states," though
no court has yet reviewed a case brought by a state, nor has any court followed
a literal application of the state's right theory by denying standing outright
to anyone except the states. Some commentators argue that this is because the
collective right decisions are in reality decisions based on the discrete
collectivist model.[159]

As the cases discussed supra illustrate, the federal courts which have
adopted the state's right interpretation have—through implication—filled in the
blank with a variety of things. Weak-form courts such as the First and Sixth
Circuits hold that the Second Amendment protects states[160] and members of the state-defined militia.[161] The Eighth Circuit has adopted the strong-form state's right
interpretation by filling the blank with the phrase "members of the National
Guard."[162]

The second component is the regulatory and constitutional framework of the
state. This inquiry emerged from the principle in Cases that "[w]hatever
rights . . . the people may have [to keep and bear arms] depend upon local
legislation,"[163] and later from Warin, in which the court analyzed how
Ohio defined its militia and what weapons it allowed militia members to own.[164] Regardless of the validity of its origins, the state's right
premise is that the sole purpose of the Second Amendment is to protect the
ability of states to maintain armed militias free from federal interference. If
this premise is to remain consistent with application of the collective right
interpretation, then a fortiori states must have a say in how their
respective militias are to be organized and equipped. Strong-form courts pass
over this step, consistent with their argument that state militias have over
time metamorphosed into the federally-controlled National Guard.[165]

The third component is whether the firearm is within the protection of the
Second Amendment. Under Miller, firearms having a militia utility are
within Second Amendment protection.[166] Some courts, beginning with the First Circuit in Cases,
have limited the Supreme Court's Miller test to the facts before the
Court in its 1939 decision, and contend that the Miller court never
reached the question of the extent to which a weapon with militia utility may be
regulated.[167]

Courts which have so limited Miller point to the development of
nuclear weapons, machine guns, trench mortars, and similar weaponry to support
their claim that, if Miller is read literally, such weapons could not be
federally regulated.[168] Faced with such a prospect, collective right courts have not
only added the standing component to the original Miller test, but they
have combined the unrelated standing and weapon inquiries into one test.

A traditional approach to deciding cases would suggest that the court would
first rule on the standing question and then separately address the question of
the constitutional limits of the Second Amendment as applied to the weapon at
issue. With their combined test, collective right courts are able to avoid
defining what and who constitutes the militia, and also to avoid serious
analysis of the militia utility of a given firearm. Dowlut observed that some
courts "make no attempt to come up with a test [of which weapons are reasonably
related to militia purposes]; alarmist rhetoric has supplanted intellectual
vigor."[169] The result is that the otherwise clear language of the
Miller test has been rendered a formality, allowing collective right
courts to simply rubberstamp congressional firearm regulation without
explanation of their holdings.

IV. THE
SECOND AMENDMENTASA BARTO FEDERAL FIREARMS
REGULATION

Unless and until the Supreme Court revisits and clarifies the meaning of the
Second Amendment, portions of the federal judiciary will likely continue to
utilize the Cases test. However, this does not mean that the citizenry
cannot still enjoy the right to keep and bear arms. By shifting Second Amendment
rights from the individual, state's right courts must now grapple with the
vexing fact that—to make an analogy to other laws of nature—the right to keep
and bear arms must go somewhere. Under the collective right interpretation, it
is vested in the artificial entity of the state.[170] Regardless of who or what asserts it, the Second Amendment
loses none of its prohibitory power as against the federal government. To hold
otherwise would constitute nothing less than a judicial repeal of the Second
Amendment.[171]

Many state constitutions acknowledge an individual right of their citizens to
keep and bear arms.[172] However, states and militia members can still protect the right
to keep and bear arms from federal regulation and interference by using existing
collective right caselaw. This approach is possible only if the state at issue
has the legal machinery in place to make such challenges, and is based on the
idea that, since some courts have made the Second Amendment a state's right,
states and state-defined militia members can assert it. Since such challenges
are based on the state's right interpretation, regulation of firearms by the
states themselves would not be prohibited under the Second Amendment.[173]

Challenges based on the weak-form state's right view will require courts to
flesh out collective right jurisprudence and to fill in the significant gaps in
that interpretation. Because collective right courts have expanded the Supreme
Court's Miller inquiry to include scrutiny of both the weapon and
the individual possessing it,[174] litigants should be prepared to present evidence[175] on both issues.

A.Challenges Brought by
States

No state has ever asserted its collective right to keep and maintain a
militia.[176] The crux of the state's right argument is, however, that the
Second Amendment "guarantees an exclusive right of the states, which only the
states have standing to invoke."[177] By allowing individuals in certain instances to claim Second
Amendment protection, the collective right courts have refused to apply the
state's right interpretation so narrowly. Collective right courts are faced with
the fact that the defendant's standing in Miller was, after all, never
questioned by the Supreme Court.

That states themselves can bring Second Amendment challenges has not been
universally accepted. In their article,[178] Ehrman and Henigan dismiss the attacks of commentators who
question the reading by state's right courts of the term "the people" in the
Second Amendment as a reference to the states (when contrasted to the meaning of
the term throughout the rest of the Bill of Rights), as being based on a
misreading of what the courts mean by the terms "collective right" and "state's
right."[179] They posit that "[t]he courts have not held that the second
amendment right belongs to the states in the sense that only the states, not
individuals, may assert it."[180] To support their argument, they point to the fact that no court
has rejected a Second Amendment challenge by an individual on the basis that he
lacked standing because he was not a state.[181] They conclude by stating that the Second Amendment protects a
collective and public interest,[182] and that the decisive issue "has been whether the impact of the
challenged statute on the individual's own right to own firearms adversely
affects the state's militia."[183]

Although they share the same collectivist premise, the Ehrman/Henigan model
differs from the discrete collectivist theory discussed supra in part
II.C. Under the discrete collectivist interpretation, the right to keep and bear
arms vests in the collective body which exists between the individual and the
state, and which can be asserted by neither.[184] Thus, like Macbeth's apparitional dagger,[185] Second Amendment rights exist in theory but not in practice.
Under the Ehrman/Henigan model, however, the prohibitory foil of the Second
Amendment materializes where necessary to protect the collective public
interest, and only then can be brandished by individuals (and perhaps states).

The Ehrman/Henigan approach to standing differs from the standing analysis of
the state's right courts, in that it has the effect of removing the traditional
adversarial process from the litigation. The court is placed in a trustee-like
role, deciding how the militias are best served and thus when standing either by
an individual—or possibly a state—is appropriate. Ehrman/Henigan collectivism
thus allows courts to rule essentially on the merits of the Second Amendment
claim before the claimant presents its case. The fact that commentators can
interpret the case law in this manner exposes the troubled and deliberately
amorphous[186] state of the courts' collective right interpretation.

The most likely scenario for a state-based challenge would be a
Perpich-type suit,[187] brought by a state governor or other official against federal
law that prohibits or regulates the possession of a weapon, use of which is
sanctioned by that state. Another possible scenario is a challenge by a state of
the federal prosecution of one of its citizens for violation of federal law. For
instance, in Warin, the state of Ohio could have brought suit against the
federal government for an unconstitutional interference with its militia. It is
unlikely that a state would be denied standing in a federal court which accepts
the state's right theory, for to do so would require that court to run headlong
into the analytical infirmities of the discrete collectivist (nebulous entity)
theory.

Challenges to federal regulation brought by states involve the same types of
arguments as those brought by individuals.[188] Under the state's right view, states must by definition be free
to control and maintain their militia without federal interference.[189] States determine how their militias will be commanded and who
will comprise their membership.[190] Under their inherent police powers, states also determine which
weapons may or may not be possessed and whether members of the militia will be
subject to such regulation. States thus can assert their Second Amendment
rights[191] to challenge any federal law which hinders the ability of state
militia members to be armed with weapons which are reasonably related to the
efficiency or preservation of the state militia.

B.The Second Front:Some Concerns of the State's Right Courts

Those who argue that the right to keep and bear arms is still an important
right are likely to encounter two common counter-arguments, both of which stress
how America has changed since the Bill of Rights was first drafted. Some
collective courts, including the weak-form Cases and Warin
courts,[192] hint that technology has rendered the right to keep and bear
arms obsolete. The second argument is that the United States has politically
evolved beyond primitive, outdated notions such as violent revolution.[193] Those challenging federal regulation under the collective right
interpretation should be prepared to answer these arguments.

The "technology" argument is based on false assumptions. The fear of both the
Cases and Warin courts was that, under the Miller standard,
the preservation of the states' ability to challenge federal armed forces would
justify individual ownership of advanced military weaponry and even nuclear
weapons.[194] It was largely this concern that prompted the Cases
court to disregard the Miller decision by limiting it to the facts before
the Supreme Court.[195] The problem with this argument is that weapons which are used
in warfare between nations do not necessarily have militia utility.
Indeed, a tyrannical state would not likely use nuclear weapons to oppress the
citizenry, since that state would essentially be destroying itself. Thus, the
citizenry would have little use for nuclear weapons as a deterrent.

Additionally, some courts imply that the militia purpose of the Second
Amendment is no longer a realistic pursuit in light of the armaments possessed
by the standing army,[196] thus Second Amendment protections for the individual are
unnecessary. This line of reasoning, which was used by the Eighth Circuit in
Hale,[197] is simplistic in that it does not acknowledge other interests
in the right to keep and bear arms, such as the right to individual
self-defense. Further, it ignores the most important benefit of an armed
citizenry; that is, as a deterrent to governmental overreaching.[198] Even with advanced weaponry, the deterring effect of more than
two-hundred million firearms in the hands of the citizenry—which in effect
become ground troops—cannot be underestimated. Thus, oppression of an armed
citizenry carries with it much greater risk than oppression of an unarmed
population.[199]

The second argument is that the United States has politically evolved beyond
the need for an armed citizenry. Professor Reynolds characterizes the argument
this way: "Maybe we have reached such a stage of comfortable freedom and
political stability that the likelihood of oppression is so low, and the need
for revolution or resistance so far-fetched" that the purpose served by the
Second Amendment is no longer present.[200] Reynolds suggests that the political stability that Americans
have enjoyed is in part the result of the inclusion of the right to keep and
bear arms in the Constitution.[201] In addressing the "political evolution" argument, Levinson
states that "it is hard for me to see how one can argue that circumstances have
so changed as to make mass disarmament constitutionally unproblematic."[202]

Considering the enormous power and influence that the United States presently
wields throughout the world, many may view this nation as indestructible.[203] History instructs that this belief is unrealistic.[204] There is little reason to believe that it is now safe to depart
from the Lockean view of the individual and government upon which the United
States was founded; that is, that government exists subject to the consent of
the governed.

C.Utilizing State Law
To Protect an Individual Right To Keep and Bear Arms Under the State's Right
Interpretation

While the Eleventh Circuit has not yet embraced the state's right
interpretation, the legislative framework in Florida provides a useful
illustration of how a collective right challenge to federal firearms regulation
might be litigated. Article X, section 2(a) of the Florida Constitution sets
forth militia membership: "The militia shall be composed of all ablebodied
inhabitants of the state who are or have their intention to become citizens of
the United States; and no person because of religious creed or opinion shall be
exempted from military duty except upon conditions provided by law."[205] Florida has no "subject to" clause, and thus no "sedentary"
militia, so a court could not maneuver around the standing issue as the Sixth
Circuit did in Warin.[206] As for litigation in strong-form courts, Florida's constitution
distinguishes between the state's militia and the "federally recognized national
guard," as do all other state constitutions and/or statutes.[207]

With Second Amendment standing established for virtually every citizen of
Florida, the next step requires examination of the state's right to keep and
bear arms provision. While collective right courts hold that the right to keep
and bear arms is not a right conferred upon individuals, the First Circuit in
Cases recognized that the federal government may not infringe upon rights
conferred to citizens by states.[208] Article I, section 8(a) of the Florida Constitution provides:
"The right of the people to keep and bear arms in defense of themselves and of
the lawful authority of the state shall not be infringed, except that the manner
of bearing arms may be regulated by law."[209] Thus, only the bearing of arms, and not their possession, is
regulated under the state's police powers. Article I, section 7 buttresses the
Florida's right to bear arms provision by stating the familiar Lockean principle
that "[t]he military power shall be subordinate to the civil."[210]

If the weapon at issue is banned by Congress but not by Florida, the next
step is to present the trial court with evidence of the military utility of the
weapon at issue through either affidavits or expert testimony. Standing will
have already been established, so the court will be unable to maneuver around
the original Miller weapons inquiry.

Also, the technological and "political evolution" arguments should be met.
Those bringing the challenge should proffer ways by which the court can avoid
holding that weapons of mass destruction are protected under the Second
Amendment. Commentators have proposed various legal tests by which courts could
hold weapons of war beyond Second Amendment protection, while still protecting
handguns, hunting rifles, and other semi-automatic weapons.[211]

If the court properly and consistently applies weak-form state's right case
law, every citizen in the state of Florida will essentially have an individual
right to keep and bear arms, subject only to the state legislature's police
powers.

V. CONCLUSION

It is time for the Supreme Court to settle finally the individual
right/state's right debate. The Court's voice has been conspicuously absent,
allowing several federal appellate courts to create the elusive case-by-case
collective right approach. Assuming arguendo the purpose of the Second
Amendment is to protect the right of states to maintain militias without federal
interference, it follows that federal regulation which prohibits ownership of
weapons that would otherwise be legal under state laws is unconstitutional. If
the state's right interpretation is to be consistent with its premise, state's
right courts must first look to the constitutions and statutes of the states
themselves.

The state's right interpretation has been used by some courts to chisel away
the citizen's right to keep and bear arms. It is in reality a double-edged
sword, sharpened on the cornerstone of its foundation—its reliance on the term
"militia." Weapons which have the highest militia utility[212] should, under the state's right interpretation, receive the
highest levels of protection from federal regulation. Collective right courts
thus far have maneuvered around such questions by rote invocation of the odd
(but no doubt convenient) Cases test, by which courts can deny Second
Amendment protection to defendants without explanation. Avoidance by collective
right courts of such troubling questions will continue to cast doubt on the
validity of their Second Amendment decisions.

[1] Congress specifically banned the following weapons:
Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikoves (all models);
Action Arms Israeli Military Industries UZI and Galil; Beretta Ar70 (SC-70);
Colt AR-15; Fabrique National FN/FAL, FN/LAR, and FNC; SWD M-10, M-11, M-11/9,
and M-12; Steyr AUG; INTRATEC TEC-9, TEC-DC9, and TEC-22; and revolving cylinder
shotguns. 18 U.S.C. §§ 921(a)(30)(A), 922 (1994). "Assault weapons" are defined
as semi-automatic rifles (one round is fired for each pull of the trigger) that
have the ability to accept two or more of the following: a folding or
telescoping stock, a pistol grip that "protrudes conspicuously beneath the
action of the weapon," a bayonet mount, a flash suppressor or threaded barrel
designed to accommodate one, or a grenade launcher. Id. § 921(a)(30)(B).
Such adornments have no effect on the actual mechanics of the weapon. According
to some, the Supreme Court ruled that these types of weapons merit the highest
constitutional protection. See infra part III.A.

The Supreme Court's recent decision in United States v. Lopez
casts doubt on the constitutionality of federal regulation of the mere
possession of firearms. 115 S. Ct. 1624 (1995). The Lopez decision is
discussed infra at note 114. Return
to text.

[2] Some excellent research and scholarship has recently
emerged indicating that the Second Amendment protects an individual right,
including: Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of
the Second Amendment, 82 MICH. L. REV. 204 (1983); Sanford Levinson, The Embarrassing Second
Amendment, 99 YALE L.J. 637 (1989); Jay R. Wagner,
Gun Control Legislation and the Intent of the Second Amendment:To
What Extent Is There an Individual Right To Keep and Bear Arms?, 37 VILL. L. REV. 1407 (1992); Robert Dowlut,
Federal and State Constitutional Guarantees to Arms, 15 U. DAYTON L. REV. 59 (1989); Nelson Lund, The
Second Amendment, Political Liberty, and the Right to
Self-Preservation, 39 ALA. L. REV. 103 (1987); Nicholas J. Johnson, Beyond the Second
Amendment:An Individual Right to Arms Viewed Through the Ninth
Amendment, 24 RUTGERS L.J. 1 (1992); Thomas M. Moncure,
The Second Amendment Ain't About Hunting, 34 HOW.
L.J. 589 (1991).

[3]E.g., In Broad Daylight—Terrorism Hits Home: U.S.
Building Bombed; Dead Include Children, WALL ST. J., April 20, 1995, at A1; Jim Galloway, Oklahoma Bombing:
The Aftermath, ATLANTA J. & CONST., May 3, 1995, at A11 ("Kingman, Ariz., the sometime home of
bombing suspect Timothy McVeigh, sits at the desert intersection of America's
two symbols of independence: cars and guns."); Explosive Backlash: Some
Citizens Disavow Extreme-Right Views in Wake of Bombing—Have 'Angry White Men'
Gone Too Far? Bad News for Nation's Gun Lobby, WALL
ST. J., April 24, 1995, at A1 (" 'It's going to be much
harder for politicians to vigorously advocate repeal of bans on assault weapons,
much harder to advocate for concealed weapons,' because these issues are so
closely identified with militia groups, says Daniel Levitas, an Atlanta-based
expert on hate crimes and extreme-right groups."). Return
to text.

[4] The state's right interpretation is discussed
infra in part II.A. Return
to text.

[5] Use of the word "grant" is perhaps inappropriate if one
views the Constitution as an acknowledgment of the already existing natural
rights of individuals, and not as a benefit or privilege provided by the State.
In this Comment, the former view is embraced. Return
to text.

[7] "In other words, the people may abolish their government
whenever it ceases to protect natural rights and becomes destructive to the ends
for which it was established." J.W. PELTASON, CORWINAND PELTASON'S
UNDERSTANDINGTHE CONSTITUTION 5 (6th ed. 1973). In an open and free nation such as
the United States, the necessity of such a revolution would be unlikely, given
the efficacy of elections and free speech to address grievances against the
government. Id. Jefferson qualified the people's right to overthrow
destructive government by adding that "Prudence, indeed, will dictate that
Governments long established should not be changed for light and transient
causes." THE DECLARATIONOF INDEPENDENCE para. 2 (U.S. 1776). Return
to text.

[9] Id. para. 14. This was one of the many grievances
Jefferson included against King George III. Return
to text.

[10] Among the charges leveled against the King by
Jefferson was that "He has kept among us, in times of peace, Standing Armies
without the Consent of the legislature" and that "He has affected to render the
Military independent of and superior to the Civil Power." Id. paras. 13,
14. Being armed was a condition that

"Americans possess over the people of almost every nation." The
despotisms of Europe were charged with being "afraid to trust the people with
arms." An armed citizenry serves as a deterrent to governmental oppression
because the people have the latent and implicit power to "rise up to defend
their just rights, and compel their rulers to respect the laws." Totalitarian
governments of the left and right in the twentieth century consider an armed
people a threat and seek to disarm them.

[11] Courts and many academics use the terms "collective
right" and "state's right" interchangeably. Another interpretation, distinct in
origin from the state's right view, is also sometimes referred to as the
"collective right" or "collectivist" interpretation. This other interpretation,
referred to in this Comment as the "discrete collectivist" or "nebulous entity"
theory (discussed infra in subsection C of this part) has been rendered
all but dead from desuetude.

Some commentators refuse to use the term "collective right" when
referring to the state's right interpretation in order to avoid confusion with
the discrete collectivist interpretation. See Kates, supra note 2,
at 212 n.31. This Comment is largely based on federal case law, and given that
federal courts use the term "collective right" to refer to the state's right
interpretation, not mixing the terms would risk confusion of another sort; that
is, the term "collective right" in federal cases should be read as state's right
language. The terms will also be used interchangeably to avoid needless
repetition. Return
to text.

[14] Kates, supra note 2, at 212. "During the
Revolution, and the subsequent period of the Articles of Confederation, the
states loomed larger than the federal government and jealously guarded their
prerogatives against it." Id.Return
to text.

[16] E.g., Kates, supra note 2, at 213. Under
a strict reading of the state's right view, only states have standing to assert
the Second Amendment. Some state's right proponents argue that state challenges
are no longer necessary since "any value the amendment might presently have for
them is satisfied by their federally-provided National Guard structure."
Id. Collective right courts have rejected such a literal approach, and
have implicitly held that individuals can raise Second Amendment challenges
under certain circumstances. See infra notes 17-20 and accompanying text.
Return
to text.

[17] The strong-form version is discussed infra in
part III.B, where the Eighth Circuit's holding in United States v. Hale,
978 F.2d 1016 (8th Cir. 1992), cert. denied, 113 S. Ct. 1614 (1993) is
examined. Return
to text.

[18] The Supreme Court's discussion of the militia in
United States v. Miller contradicts the strong-form notion that the
National Guard comprises the modern militia. 307 U.S. 174 (1939). For a
discussion of the Miller decision, see infra part III.A. Return
to text.

[20] "The background of war, revolution, and violence
against which our institutions were formed represents much more the norm of
human existence than the domestic peace and stability that Americans have
enjoyed in this century." Glenn Harlan Reynolds, The Right To Keep and Bear
Arms Under the Tennessee Constitution, 61 TENN. L.
REV. 647, 669 (1994). Return
to text.

[21] See, e.g., Kates, supra note 2,
at 206-07 (the individual right interpretation is "accepted by a majority of the
general populace who, though supporting the idea of controlling guns,
increasingly oppose their prohibition"); Lund, supra note 2, at 115 ("The
'collective right' interpretation has become dominant among the courts and
academics, while laypersons have generally favored the 'individual right'
interpretation."). Return
to text.

[22] "[T]he individual right advocate may accept the
state's right theory and simply assert that, even though one of the amendment's
purposes may have been to protect the states' militias, another was to protect
the individual right to arms." Kates, supra note 2, at 213 (footnotes
omitted). Return
to text.

[24] "Indeed, evidence suggests it was precisely by
protecting the individual that the Framers intended to protect the militia."
Kates, supra note 2, at 213. Return
to text.

[25] Judge Cooley explained the purpose of the Second
Amendment preamble:

It may be supposed from the phraseology of this provision that the
right to keep and bear arms was only guaranteed to the militia; but this would
be an interpretation not warranted by intent. The militia, as has been
elsewhere explained, consists of those persons who, under the law, are liable
to the performance of military duty, and are officered and enrolled for
service when called upon. But the law may make provision for the enrollment of
all who are fit to perform military duty, or of a small number only, or it may
wholly omit to make any provision at all . . . .

[27] 92 U.S. 542, 553 (1875) (the Second Amendment right
"means no more than that it shall not be infringed by Congress. This is one of
the amendments that has no other effect than to restrict the national government
. . . ."). Return
to text.

[28] 116 U.S. 252, 267 (1886) (rejecting claim that Second
Amendment invalidated an Illinois statute prohibiting "any body of men whatever,
other than the regular organized volunteer militia of this State, and the troops
of the United States . . . to drill or parade with arms in any city or town of
this state, without the license of the governor thereof"). Return
to text.

[34] This interpretation will not be referred to as the
"collective right" interpretation, even if the use of "collective" more
appropriately describes this view. See supra note 11. Return
to text.

[35] This collectivist approach is laced with undertones of
Hegel's "abstract Universality," whereby "[t]he interest of History is detached
from individuals, but these gain for themselves abstract, formal Universality.
The Universal subjugates the individuals; they have to merge their own interests
in it . . . ." Georg Wilhelm Friedrich Hegel, Philosophy of History, in
ROMANTICISMAND EVOLUTION 165, 169 (Bruce Wilshire ed., 1985). Levinson points out
that collectivist views of the Second Amendment, such as the discrete
collectivist interpretation and the state's right interpretation, are compatible
with the neo-republican notion of a collective people as contrasted with the
individual. Levinson, supra note 2, at 650 ("one of the most interesting
points in regard to the new historiography of the Second Amendment [is] its
linkage to conceptions of republican political order. Contemporary admirers of
republican theory use it as a source both of critiques of more individualist
liberal theory and of positive insight into the way we today might reorder our
political lives."). The "organic community" of the civic republicans bears
striking resemblance to the discrete collectivists' body of the collective
citizenry. "Civic republicanism is by nature a collectivist political theory. In
other words, civic republicanism gives primary empirical and ethical
significance to collective, rather than individual human endeavors." Steven G.
Gey, The Unfortunate Revival of Civic Republicanism, 141 U. PA. L. REV. 801, 811 (1993). Return
to text.

[36] See Dowlut & Knoop, supra note 10,
at 189. "This essentially means that the right to bear arms protects no one and
guarantees nothing, for regardless of how draconian and unconstitutional a law
may be, no individual would have standing to challenge such a law." Id.
at 186-87. Return
to text.

If the amendment was intended to guarantee a right to the people
(and not to the state), it is self-contradictory to say that because the right
was conferred on everyone, no single person may assert it, or indeed, to
describe something that guarantees nothing to any specific person or entity as
a 'right' at all. Thus, the discrete 'collective right' theory fails to meet
Chief Justice Marshall's elementary test for constitutional construction: 'It
cannot be presumed that any clause in the Constitution is intended to be
without effect . . . .' Marbury v. Madison, 5 U.S. (Cranch) 137
(1803)[.]

[41] See Keith A. Ehrman & Dennis A. Henigan,
The Second Amendment in the Twentieth Century:Have You Seen Your
Militia Lately?, 15 U. DAYTON L. REV. 5 (1989). This argument is discussed infra in part IV.
Return
to text.

[42] This is not so true today, as several law review
articles have emerged which cast doubt on the validity of the state's right
interpretation. See supra note 2. Many scholars who champion the
individual right view are practitioners, including Stephen P. Halbrook, Don B.
Kates, Jr., and Robert Dowlut. Return
to text.

[44] "Other than its being included in the text of the
Constitution that all of the casebooks reprint, a reader would have no reason to
believe that the Amendment exists or could possibly be of interest to the
constitutional analyst." Levinson, supra note 2, at 639 n.14. Return
to text.

[45] Id. (treatises by Tribe, and the team of Nowak,
Rotunda, and Young, while at least acknowledging the existence of the Second
Amendment, "marginalize [it] by relegating it to footnotes; it becomes what a
deconstructionist might call a 'supplement' to the ostensibly 'real'
Constitution that is privileged by discussion in the text"). Return
to text.

[46] "That bastion of individual rights, the American Civil
Liberties Union—a member of the organization of the National Coalition to Ban
Handguns—emphatically denies that the Second Amendment has anything to do with
individuals." Lund, supra note 2, at 121 n.45. Return
to text.

[47] Levinson, supra note 2, at 658. Professor
Levinson titled his article The Embarrassing Second Amendment to suggest
that the Second Amendment "may be profoundly embarrassing to many who both
support such regulation and view themselves as committed to zealous adherence to
the Bill of Rights (such as most members of the ACLU)." Id. at 642.
Levinson's article is a study in intellectual honesty. A proponent of gun
control, Levinson removes the political blinders which would otherwise cloud his
examination of the meaning and purpose of the Amendment. While addressing the
certainty of the National Rifle Association of America advocates "that the
Second Amendment means precisely what they assert it does," Levinson concludes
that his likely audience, the "elite, liberal portion of the public" (in which
he includes himself), should consider the possibility that " 'our' views of the
Amendment . . . might themselves be equally deserving of the 'tendentious'
label." Id.Return
to text.

[51] See Levinson, supra note 2, at 642.
Levinson offers the following view from inside the tower:

I cannot help but suspect that the best explanation for the
absence of the Second Amendment from the legal consciousness of the elite bar,
including that component found in the legal academy, is derived from a mixture
of sheer opposition to the idea of private ownership of guns and the perhaps
subconscious fear that altogether plausible, perhaps even "winning,"
interpretations of the Second Amendment would present real hurdles to those of
us supporting prohibitory regulation.

Id. (citations omitted).

Crime has become a major problem in the United States, and it is believed
that gun control, particularly with regard to "assault weapons" and handguns,
will alleviate violent crime committed with firearms. See Gordon Witkin,
Should You Own a Gun?, U.S. NEWS & W.R., Aug.
15, 1994, at 24 (Witkin contrasts the views of gun and crime expert Gary Kleck,
Professor of Criminology at Florida State University, and author of Crime
Control Through Private Use of Armed Force, 35 SOC.
PROBS. 1 (Feb. 1988), with those of a physician who
advocates gun control). Return
to text.

[52] Johnson points to the frequently encountered tactic of
"stereotyping gun owners and dismissing any arguments supporting individual
firearms ownership by personifying gun owners or advocates in condescending,
pejorative terms." Johnson, supra note 2, at 72. As an example, he points
to an article by Wendy Brown titled Guns, Cowboys, Philadelphia Mayors and
Civic Republicanism:On Sanford Levinson's The Embarrassing Second
Amendment, 99 YALE L.J. 661 (1989), in which Professor
Brown recounts an encounter with a sportsman who helped her start her stalled
car at a trailhead in the Sierra Nevadas:

My rescuer was wearing a cap with the words "NRA freedom"
inscribed on it. This was, I thought at the time perfectly counterpoised to
the injunction "Resist Illegitimate Authority" springing from my tee shirt.
The slogans our bodies bore appeared to mark with elegant economy our
attachment to opposite ends of the political and cultural universe—he
preparing to shoot the wildlife I came to revere, he living out of his
satellite-dished Winnebago and me out of my dusty backpack, he sustained by
his guns and beer, me by my Nietzsche and trail mix.

Brown, supra, at 666. One wonders whether Brown in retrospect
recognized the elegant congruity in those slogans, or that in the context of a
right to bear arms for individual defense, the sportsman shared the company of
Hobbes, Harrington, Sir Walter Raleigh, Blackstone, Aristotle, Montesquieu, and
Sir Thomas Moore, among others. See Kates, supra note 2, at
232-33. Return
to text.

[54] Justice Douglas offered the following view of the
importance of the Fourth Amendment compared with the Second:

Critics say that proposals like [the state's rights
interpretation] water down the Second Amendment. Our decisions belie that
argument, for the Second Amendment, as noted, was designed to keep alive the
militia. But if watering-down is the rule of the day, I would prefer to water
down the Second rather than the Fourth Amendment.

[56] "This holding has been widely misunderstood, most
surprisingly by proponents of the individual right position. They have gone so
far as to denigrate its authority by pointing out that it was rendered on the
basis of only the Government's one-sided briefing." Kates, supra note 2,
at 248. Return
to text.

[57] Miller, 307 U.S. at 175. The National Firearms
Act of 1934 was enacted during the violent days of Prohibition, when certain
types of firearms, particularly sawed-off shotguns and machine guns, became
notorious tools of gangsters. Return
to text.

To provide for calling forth the Militia to execute the Laws of
the Union, suppress insurrections and repel Invasions; To provide for
organizing, arming, and disciplining, the Militia, and for governing such Part
of them as may be employed in the Service of the United States, reserving to
the States respectively, the Appointment of the Officers, and the Authority of
training the Militia according to the discipline prescribed by
Congress.

U.S. CONST. art. I, § 8. The meaning of the term
"militia" as used in this section is very important to the state's right debate.
Those in the weak-form state's right camp point to this section as the rationale
behind the Second Amendment. Kates, supra note 2, at 211-12. According to
this view, states were not willing to give the federal government control over
their militias (that is, their armed citizenry) without assurances that the
federal government would not be able to use its authority to disarm the
militias. Id. at 212.

According to the strong-form interpretation, the § 8 militia is now the
National Guard. The National Guard is a cooperative venture, with each state
directing its respective National Guard in peacetime. However, even when the
National Guard is not under federal control, Congress still holds "a
considerable degree of control through conditions attached to grants of money to
the states for the National Guard." PELTASON, supra
note 7, at 63. Under the strong-form, the Second Amendment is of no relevance
today, since the militia has evolved over time into the National Guard.
See Ehrman & Henigan, supra note 41.

If not for the Miller opinion, those in the individual right camp
would not care what the Militia Clause meant, since individuals could assert the
Second Amendment regardless. Indeed, congressional authority under § 8 would
thus pose no real threat of federal oppression, since ultimate military power
would always remain vested in the people. Return
to text.

[74] Id. at 922-23 ("[T]he only inference possible
is that the appellant at the time charged in the indictment was in possession
of, transporting, and using the firearm and ammunition purely and simply on a
frolic of his own and without any thought or intention of contributing to the
efficacy of the well regulated militia which the Second Amendment was designed
to foster as necessary to the security of a free state."). Return
to text.

[75] Id. at 922-23 ("While the weapon may be capable
of military use . . . there is no evidence that the appellant was or ever had
been a member of any military organization or that his use of the weapon . . .
was in preparation for a military career."). Return
to text.

[76] It is true that the Miller test includes the
words "possession or use," but the Supreme Court's sole attention was directed
at the relationship between the sawed-off shotgun and the militia. No mention
was made of Miller's militia status. Miller, 307 U.S. at 178. Return
to text.

[77] United States v. Cruikshank, 92 U.S. 542, 553 (1875);
Presser v. Illinois, 116 U.S. 252, 265 (1886). Before portions of the Bill of
Rights were incorporated against the states, all amendments were interpreted in
such a manner. See Kates, supra note 2, at 253-57. Return
to text.

[78] With the Slaughter House Cases, 83 U.S. (16
Wall.) 36 (1872), the Supreme Court began to construe the recently added
Fourteenth Amendment. PELTASON, supra note 7, at
155, 157. The Court held that the Amendment "conferred no new rights upon United
States citizens but merely made explicit a federal guarantee against state
abridgement of already established rights." Id. at 157. Since the
Slaughter House Cases, the Court has gradually held most of the rights
guaranteed in the first eight amendments applicable to the states through the
Fourteenth Amendment due process clause. STONEETAL., supra note 53, at 778. The
Second Amendment has not yet been explicitly incorporated. Return
to text.

[82] With regard to the state's right interpretation among
federal courts, the Stevens court picked up where the Cases court
left off, ushering the state's right view into the circuits. Return
to text.

[86] Warin did not claim membership in an organized militia
such as the Ohio National Guard, but rather claimed membership in Ohio's
sedentary militia, whose members included:

All citizens, resident of this state, being seventeen years of
age, and under the age of sixty-seven years, shall be subject to enrollment in
the militia and the performance of military duty, in such manner, not
incompatible with the Constitution and laws of the United States, as may be
prescribed by law.

OHIO CONST. art. IX. The court
noted that this provision "does not by its own force make adult citizens of Ohio
members of the organized or active militia, but merely subjects them to
enrollment in that body." Warin, 530 F.2d at 105 n.1. Return
to text.

[96] The court's Second Amendment inquiry could have ended
when it was determined that Ohio law did not confer upon Warin the right to
possess his automatic weapon. Return
to text.

[97] Warin, 530 F.2d at 106 ("Agreeing as we do with
the conclusion in [Cases] that the Supreme Court did not lay down a
general rule in Miller, we consider the present case on its own facts and
in light of applicable authoritative decisions."). Return
to text.

[98] Id. ("If the logical extension of the
defendant's argument for the holding of Miller was inconceivable in 1942
[when Cases was decided], it is completely irrational in this time of
nuclear weapons."). This argument is discussed infra in part IV.C. Return
to text.

[100] Without standards, the types of weapons within the
scope of Second Amendment "reasonableness" depends solely upon individual
determinations by each court. Return
to text.

[101] In Cody v. United States the Eighth Circuit
considered whether 18 U.S.C. § 922(a)(6) (1970), which makes it unlawful for
persons acquiring or attempting to acquire firearms and ammunition to make false
statements to a licensed dealer as to the lawfulness of a sale, infringed on the
defendant's Second Amendment rights. 460 F.2d 34 (8th Cir. 1972), cert.
denied, 409 U.S. 1010 (1972). Though the result under Miller would
have been the same, the court announced its holding in a single sentence: "We
find no evidence that the prohibition of § 922(a)(6) obstructs the maintenance
of a well regulated militia." Id. at 37. This ambiguous phrase is, of
course, not the Miller inquiry. It is not difficult to imagine situations
where a federal regulation could prohibit a type of firearm reasonably related
to the efficiency of the militia while posing no obstruction to its maintenance
and preservation. Though the Cody court was not dealing with the
regulation of a firearm, but rather the regulation of an act, the court could
simply have held that making a false statement to a licensed dealer is not
reasonably related to the efficiency and preservation of the militia. Return
to text.

[114] Hale, 978 F.2d at 1017. The federal commerce
clause power is subject to the Bill of Rights. The federal government could no
more use its interstate commerce and taxing powers to regulate firearms out of
existence than it could use those same powers to regulate printing presses,
newspapers, and magazines out of existence. With its recent decision in
United States v. Lopez the Supreme Court limited the scope of the
interstate commerce clause in the particularly relevant context of federal
firearms regulation. 115 S. Ct. 1624 (1995). Through Justice Rehnquist, the
Court held that the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q)(1)(A)
(1988 ed., Supp. V), which made illegal mere possession of a firearm within 1000
feet of a school, exceeded Congress's commerce clause authority. Lopez,
115 S. Ct. at 1634. While this decision does not alter the Second Amendment
analysis, it does cast doubt on federal regulation which bans the possession of
certain firearms. Return
to text.

[116] Id. at 1019-20. The Hale court
provided a succinct summary of the Cases test:

After carefully examining the principles and implications of the
then recent Miller decision, the First Circuit concluded that the
existence of any "reasonable relationship to the preservation of a well
regulated militia" was best determined from the facts of each individual case.
Thus, it is not sufficient to prove that the weapon in question was
susceptible to military use . . . . Rather, the claimant of Second Amendment
protection must prove that his or her possession of the weapon was
reasonably related to a well regulated militia. Where such a claimant
presented no evidence either that he was a member of a military organization
or that his use of the weapon was "in preparation for a military career," the
Second Amendment did not protect the possession of the weapon.

[122] "Whether the 'right to bear arms' for militia
purposes is 'individual' or 'collective' in nature is irrelevant where, as here,
the individual's possession of arms is not related to the preservation or
efficiency of a militia." Id. at 1020. This language is a far cry from
absolutist state's right cases decided before the 1990
Verdugo-Urquidez decision. Cf. Stevens v. United States,
440 F.2d 144 (6th Cir. 1971) ("there can be no serious claim to any express
constitutional right of an individual to possess a firearm"). Return
to text.

[133] It is unlikely that the Supreme Court would devote
eleven paragraphs of a seventeen paragraph opinion to "historical residue."
Justice McReynolds's discussion of the militia in Miller contrasts the
state militias with standing armies and explores the development of militias
from the days of King Alfred up to the time of the decision, when the right to
keep and bear arms is conferred by states upon citizens of the states. United
States v. Miller, 307 U.S. 174, 178-82 (1939). Return
to text.

[135] Id. The court in Warin only held that
Ohio's statutes did not exempt members of the sedentary militia (i.e., the Ohio
citizenry) from the dangerous ordnance law. See supra subsection B.2 of
this part. The Sixth Circuit was examining Ohio's arms and militia provisions
(consistent with the weak-form state's right inquiry), and was not making a
pronouncement of what type of militia membership is reasonably related to
militia purposes. Return
to text.

[136] The individual right view is that state suspicion of
federal oppression is only one of several reasons for the right to bear arms. Return
to text.

[137] Hale, 978 F.2d at 1021. While Judge Beam
agreed that an automatic machine gun is not protected by the Second Amendment,
he did not embrace the court's acceptance of the state's right interpretation:

I disagree, however, that Cases v. United States, 131 F.2d
916 (1st Cir. 1942); United States v. Warin, 530 F.2d 103 (6th Cir.
1976); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) and
United States v. Nelson [sic], 859 F.2d 1318 (8th Cir. 1988) properly
interpret the Constitution or the Supreme Court's holding in United States
v. Miller, 307 U.S. 174, 59 S. Ct 816, 83 L.Ed. 1206 (1939) insofar as
they say that Congress has the power to prohibit an individual from possessing
any type of firearm, even when kept for lawful purposes. Judge Gibson's
[majority] opinion seems to adopt that premise and with that holding, I
disagree.

[151] It is more likely the former, as language in the
decision indicates recognition by the court that it need go no further than the
incorporation question. Return
to text.

[152] The court noted that, in post-Miller
decisions, "the lower federal courts have uniformly held that the Second
Amendment preserves a collective, rather than an individual right." However, the
court did not cite to Miller for this proposition: "This court's
precedent is [the court's own 1974 decision in] United States v. Johnson, 497
F.2d 548 (4th Cir. 1974)." If the Fourth Circuit had viewed Miller as a
state's right case, there is little doubt that it would cite to the higher court
for that proposition. Return
to text.

[160] See Stevens v. United States, 440 F.2d 144,
149 (6th Cir. 1971) ("the Second Amendment right 'to keep and bear Arms' applies
. . . to the right of the State to maintain a militia"). Return
to text.

[161] See United States v. Warin, 530 F.2d 103, 106
(6th Cir. 1976), cert. denied, 426 U.S. 948 (1976) (holding that
defendant was not protected under the Second Amendment because Ohio law gives
"no such exemption [from an Ohio statute prohibiting possession of a dangerous
ordnance] for members of the 'sedentary militia' " to carry automatic firearms).
Return
to text.

[166] See Dowlut, supra note 2, at 74
("Miller holds that the Constitution protects the right to "possession or
use" of arms having militia utility, e.g., shotguns, rifles, and pistols."). The
Miller Court was presented with no evidence that sawed-off shotguns had
militia utility. United States v. Miller, 307 U.S. 174, 178 (1939). Return
to text.

[171] This is just what the Supreme Court of Kansas did
when it invented the nebulous entity theory in City of Salina v.
Blaksley, 83 P. 619 (Kansas 1905); see Dowlut, supra note 2,
at 76-77 ("In Kansas . . . their guarantee to arms has been judicially repealed.
. . . [S]everal generations later the Kansas Supreme Court obliquely retreated
from Blaksley. . . . "). Return
to text.

[172] See Dowlut, supra note 2, at 84-89
(Appendix; noting that, as of 1989, 43 states had constitutional guarantees to
keep and bear arms). Return
to text.

[t]here is under our decisions no reason why stiff state laws
governing the purchase and possession of pistols may not be enacted. There is
no reason why pistols may not be barred from anyone with a police record.
There is no reason why a State may not require a purchaser of a pistol to pass
a psychiatric test. There is no reason why all pistols should not be barred to
everyone except the police.

407 U.S. 143, 150 (1971) (Douglas, J., dissenting). Justice Douglas was
likely basing his assertion on incorporation grounds and the Presser and
Cruikshank holdings, and not on the collective right interpretation. In
fact, in the next paragraph he cites to the Court's Miller test, noting
that "[t]he Second Amendment . . . 'must be interpreted and applied' with the
view of maintaining a militia.' " Id. (quoting United States v. Miller,
307 U.S. 174, 178-79 (1939)). He then quotes Justice McReynolds' definition of
the militia as "civilians primarily, soldiers on occasion." 407 U.S. 143, 151
(1971 (Douglas, J., dissenting). Regardless, as to state regulation, the result
is the same under either the incorporation holdings or under the collective
right interpretation; after all, there is little point in incorporating a right
against the states which the states themselves own. Return
to text.

[175] As to the weapon prong, evidence could include
affidavits or expert testimony from firearms experts, historians, Second
Amendment and/or militia scholars, and experts on military affairs. As to the
standing prong, evidence should include the relevant state constitution, any
state statutes regulating firearms or the militia, affidavits from the governor
(or person charged under the state constitution as commander of the state
militia), and anything else that indicates that the state's militia is comprised
of its citizens. Return
to text.

[176] Perpich v. U.S. Dep't of Defense,
involved federal control of the National Guard, not the Second Amendment. 496
U.S. 334 (1990). Return
to text.

[184] See Kates, supra note 2, at 211 n.31
("Under this theory constitutional right to arms guarantees, whether federal or
state, involve only a 'collective right' of the entire people, by which is
apparently meant a right that cannot be invoked by anyone either in his own
behalf or on behalf of the people as a whole.") (discussing City of Salina v.
Blaksley, 83 P. 619 (Kansas 1905)). Return
to text.

[185] WILLIAM SHAKESPEARE, THE TRAGEDYOF MACBETH act 2, sc. 1 (Lancer Books
1968) (Is this a dagger which I see before me,/ The handle toward my hand? Come,
let me clutch thee!/ I have thee not, and yet I see thee still./ Art thou not,
fatal vision, sensible/ To feeling as to sight? or art thou but/ A dagger of the
mind . . . ?). Return
to text.

[186] As collective right courts continue to drift out of
sight from Miller, they have employed in their decisions a guarded, and
indeed pragmatic, conservatism. The state's right courts can be analogized to a
table of nervous diners, each one looking to the other to see which fork should
be lifted first. Return
to text.

[187] Perpich was a case concerning the National
Guard, and did not address the Second Amendment or state militias. Perpich v.
Dep't. of Defense, 496 U.S. 334 (1990). "In [Perpich] the Court
distinguished the 'National Guard,' the organized militia of the various states,
from the 'National Guard of the United States.' In reaching its decision, the
Court did not need to explore the nature of the unorganized, or constitutional,
militia." Moncure, supra note 2, at 594 (citations omitted). Return
to text.

[188] However, collective right courts will not be able to
use the standing prong of the Cases test to avoid discussion of the
militia utility of the weapon. Return
to text.

[189] Otherwise, the contradiction which plagues the
strong-form interpretation arises. The collective right interpretation becomes
intellectually indefensible if the federal government is permitted to control
the state militias. The purpose of the Second Amendment is, under the collective
right theory, to protect states from just that type of federal interference. Return
to text.

[191] This assumes that the suit is brought in a state's
right court. Return
to text.

[192] United States v. Warin, 530 F.2d 103, 106 (6th
Cir.), cert. denied, 426 U.S. 948 (1976) (in the age of nuclear weaponry,
strict reading of Miller is "inconceivable"); Cases v. United States, 131
F.2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943) (given
the military weapons which emerged from the early years of World War II,
Miller cannot be read as formulating a general approach to the Second
Amendment). Return
to text.

[193] See United States v. Hale, 978 F.2d 1016,
1019 (8th Cir. 1992), cert. denied, 113 S.Ct. 1614 (1993) (individual
right to keep and bear arms is "historical residue," and the national guard
structure has replaced the state militias). Return
to text.

[194] This is a plausible reading of Miller:

Ironically, Miller can be read to support some of the most
extreme anti-gun control arguments, e.g., that the individual citizen has a
right to keep and bear bazookas, rocket launchers, and other armaments that
are clearly relevant to modern warfare, including, of course, assault
weapons.

[196] The argument is that state militias cannot hope to
stand up against the sophisticated and powerful weaponry of the federal standing
army. Kates addresses this assertion: "The argument that an armed citizenry
cannot hope to overthrow a modern military machine flies directly in the face of
the history of partisan guerilla and civil wars in the twentieth century."
Kates, supra note 2, at 270 (citing the experience of the British in
Israel and Ireland, the French in Indo-China, Algeria, and Madagascar, the
Portuguese in Angola, as well as the Americans in Vietnam and the Soviets in
Afghanistan). Return
to text.

[198] "[I]n a free country like our own, the issue is not
really overthrowing a tyranny but deterring its institution in the first place."
Kates, supra note 2, at 270. Return
to text.

[199] "[A] state facing a totally disarmed population is
in a far better position, for good or for ill, to suppress popular
demonstrations and uprisings than one that must calculate the possibilities of
its soldiers and officials being injured or killed." Levinson, supra note
2, at 657. Return
to text.

[201] Id. at 669 ("These good results should make
us rather cautious about making wholesale changes in [the Founding Fathers']
plan."). Return
to text.

[202] Levinson, supra note 2, at 656. If the
citizens of China kept arms, the massacre of Chinese students in Tianamen Square
in 1989 may not have occurred. Id. Tianamen Square serves as a poignant
example of the ability of political regimes to suppress and stamp out revolution
and protest by an unarmed citizenry. Return
to text.

[203] Reynolds, supra note 20, at 669 ("We may try
to convince ourselves that something in the North American soil or climate
renders us immune to these destructive forces, but it appears more likely that
our relative tranquility has resulted from a combination of luck and
well-crafted institutions."). Return
to text.

[206] 530 F.2d 103, 106 (6th Cir. 1976) (Ohio statute
exempted only members of the organized state militia, not members of the
sedentary militia). Return
to text.

[207] "All states and the federal government have enacted
provisions dealing with the militia independent of the National Guard." Moncure,
supra note 2, at 594-95 n.44 (providing citations to the militia clause
in each state constitution). Florida distinguishes between the National Guard
and the state militia in statutorily as well as in its Constitution. FLA. STAT. ch. 250.02 (1993). Return
to text.

[208] Cases v. United States, 131 F.2d 916, 921-22 (1st
Cir. 1942), cert. denied, 319 U.S. 770 (1943) (Second Amendment not a
conferral of rights but a bar to Congressional infringement of state conferred
rights). See discussion of the Cases decision, supra part
III.B.1. States can provide freedoms and rights which surpass those found in the
federal Constitution. See, e.g., William J. Brennan, Jr., The
Bill of Rights and the States:The Revival of State Constitutions as
Guardians of Individual Rights, 61 N.Y.U. L. REV. 535,
548 (1986) ("As is well known, federal preservation of civil liberties is a
minimum, which the states may surpass so long as there is no clash with federal
law."). Whether a state's right to keep and bear arms provision clashes with
federal law depends upon how the courts interpret the militia utility inquiry of
the Second Amendment. The Constitution is, after all, the ultimate federal law.
Return
to text.

[211] Kates proposes a three-pronged test. To be protected
under the Second Amendment, Kates would require weapons to be (1) of the kind in
common use among law-abiding people today; (2) useful and appropriate not just
for military purposes, but for law-enforcement and individual self-defense as
well; and (3) lineally descended from the kinds of weaponry known to the
Founders. Kates, supra note 2, at 259. Kates's test, though somewhat
restrictive, is an example of the type of legal test courts should have been
developing after the Miller decision. Return
to text.

[212] Weapons such as the semi-automatic Colt AR-15 rifle,
one of the weapons banned recently by the federal government, see supra
note 1 and accompanying text, can be considered among those weapons most useful
to the preservation and efficiency of state militias. Return
to text.